Stay Requested in Wisc. Same-Sex Marriage Challenge

MADISON, Wis. - Wisconsin Attorney General J.B. Van Hollen asked a federal judge on Friday to place on hold any future order she may make that would strike down the state’s ban on gay marriage, the second time this week the Republican expressed doubt in the state’s chances to succeed in defending the law.

Van Hollen, during a Sunday interview that aired on WISN-TV, said that while he intended to aggressively defend Wisconsin’s constitutional ban on gay marriage, he expected to lose in federal court given recent rulings across the country in favor of gay marriage.

The American Civil Liberties Union filed a lawsuit in February on behalf of eight gay couples challenging Wisconsin’s constitutional ban on gay marriage. The lawsuit contends that the ban denies gay couples the civil rights that other married couples enjoy.

U.S. District Judge Barbara Crabb has put the case on an expedited schedule and asked the ACLU not to seek a temporary halt to enforcement of the ban in the meantime, given that she hopes to rule on the merits of the case quickly.

State marriage bans have been falling around the country since the U.S. Supreme Court last year struck down part of the federal Defense of Marriage Act. Gay and lesbian couples can wed in 19 states and the District of Columbia, with Oregon and Pennsylvania becoming the latest to join the list this week when federal judges struck down their bans and officials decided not to appeal.

Wisconsin voters amended the state constitution in 2006 to outlaw gay marriage or anything substantially similar. The state has offered a domestic partner registry that affords gay couples a host of legal rights since 2009 but its future is in doubt; the conservative-leaning state Supreme Court is currently weighing whether it violates the constitution.

The lawsuit alleges that Wisconsin’s ban violates the U.S. Constitution’s Equal Protection and due process, asserting the prohibition deprives gay couples of legal protections married couples enjoy simply because of their sex.It also points out that gay couples who reside in Wisconsin can’t get married in another state and return to Wisconsin legally; a provision in state law declares that anyone who marries in another state to circumvent Wisconsin law can face up to $10,000 in fines and jail time.

Van Hollen, in his motion filed Friday, said if the judge strikes down all or a part of Wisconsin’s ban he would appealed the decision to the 7th U.S. Circuit Court of Appeals. While that appeal would be pending, Van Hollen argued, the judge should put her order on hold because clerks would be allowed to issue marriage licenses to same-sex couples.

Not preserving current law while an appeal would be pending would lead to "chaos, confusion, uncertainty, and ultimately, further litigation," Van Hollen said.

"The state is fighting tooth and nails to make sure that no same-sex c ouple in Wisconsin is allowed the freedom to marry, while signaling that they understand the weakness of their own legal position," ACLU attorney John Knight said.

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